Abolishing judicial review.

• Author: Tushnet, Mark V.
• Position: The United States Constitution, rev. ed.: How Would You Rewrite the United States Constitution?

PROPOSED CONSTITUTIONAL AMENDMENT:

The constitutionality of acts of Congress shall not be reviewed by any court in the United States. (2)

COMMENTARY

1. Source: The proposal is adapted from Article 120 of the Constitution of the Netherlands: "The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts." (3)

2. Scope: (a) "any court in the United States"

The proposed amendment would apply to all courts (other than international courts located physically in the United States, should there happen to be any), those established under the authority of the United States (the federal courts including courts established pursuant to Congress's authority under Article I and subject to scope note (b)(ii) below) and state courts as well.

(b) "acts of Congress"

(i) The proposed amendment would not in general bar courts from determining that actions by executive officials violate the Constitution. (4) The courts could of course hold executive action unauthorized by statute. In addition, they could take constitutional values into account in determining whether a specific executive action had been authorized by Congress, and hold the action unlawful ("unconstitutional," in a slight adaptation of existing usage) in the absence of sufficient authorization. Further, they could adjust their assessment of the sufficiency of statutory authorization in light of their assessment of the importance of the constitutional values implicated in the case. They might require that certain kinds of executive action be specifically authorized in quite express terms by congressional enactment. (5) But, importantly, expressly authorized executive action would not be reviewable for consistency with the Constitution. (6)

(ii) The proposed amendment would not preclude Congress from enacting the entire Constitution or portions thereof as a framework statute, and from authorizing the courts to determine whether some subsequent enactment is consistent with the "statutory Constitution." (7) Should the courts find a statute inconsistent with the statutory Constitution, Congress would retain the power to reject their interpretation (of the statutory Constitution) by expressly amending the statutory Constitution to make its statute effective notwithstanding the courts' interpretation of the statutory Constitution. (8)

(iii) The proposed amendment would not apply to legislation enacted by state legislatures or to municipal ordinances. Were Congress to disagree with a judicial determination that some state statute or municipal ordinance violated the Constitution, it would have the effective power to enact a statute making the state statute or ordinance legally effective within the jurisdiction that adopted the statute or ordinance. And conversely, were Congress to disagree with a judicial determination that a state or local statute did not violate the Constitution, it would have the power to enact a (national) statute denying legal effect to the state or local statute (and presumably though not necessarily all similar statutes in other jurisdictions). (9)

(iv) The proposed amendment would not allow the defensive use of constitutional objections. Assume that Congress enacts a criminal statute that a court would find unconstitutional because it violates the First Amendment, were the court to engage in its own analysis of the legal materials relevant to determining whether a statute violates that Amendment. The proposed amendment would bar the court from engaging in that independent analysis (except insofar as relevant to interpreting the statute). The court would be required to allow trial to proceed and to remit a convicted defendant to executive custody. (10)

DISCUSSION

The proposed amendment is modeled on a provision in the constitution of the Netherlands, but it is not a simple transplant from that constitution. The United States and the Netherlands differ along many dimensions relevant to institutional design and modification: size, degree of heterogeneity among the population, (11) political structures such as federalism, the use of a parliamentary or a separation-of-powers system in organizing the legislative and executive branches, the electoral system, and perhaps the ideological and political predispositions of the political elite. Yet, the Netherlands is recognizably a reasonably well-functioning liberal democratic state. (12) Its refusal to allow judicial review of national legislation establishes an "existence" proposition that that sort of judicial review is not necessary for a state to be a reasonably well-functioning liberal democracy. (13)

The proposed amendment recognizes a fundamental feature of the U.S. Constitution: Nearly all of its terms, and for all practical purposes all of the terms that generate the kind of dispute that leads to judicial review, are subject to reasonable alternative interpretations. (14) The U.S. system of judicial review rests on the proposition that the interpretation found more reasonable than alternatives by judges prevails over reasonable interpretations found more reasonable by Congress. That is a specific institutional arrangement that, in my view, has never been successfully defended against criticism. It certainly does not flow from a conceptual analysis of terms like "law," "supreme law," "Constitution," and the like--as, again, the example of the Netherlands shows. (15)

This Essay is of course not the place to develop all the (to me persuasive) criticisms of the U.S. institutional arrangements for enforcing the Constitution. Three deserve brief mention, though. I state them dogmatically, with equally dogmatic responses.

(1) Judges as experts in the...